Coates' Canons » Michael Crowellhttp://canons.sog.unc.edu
NC Local Government LawThu, 30 Jul 2015 13:13:22 +0000en-UShourly1http://wordpress.org/?v=4.2.3Retention Elections for the State Supreme Court?http://canons.sog.unc.edu/?p=8133&utm_source=rss&utm_medium=rss&utm_campaign=retention-elections-for-the-state-supreme-court
http://canons.sog.unc.edu/?p=8133#commentsThu, 11 Jun 2015 20:44:57 +0000http://canons.sog.unc.edu/?p=8133The North Carolina General Assembly has just enacted House Bill 222and it now awaits the governor’s signature. It would change the way we elect our state supreme court justices. After once being elected in a regular contested election, the justice thereafter would be subject only to yes/no retention votes at the end of each eight-year term. That is, after that first contested election no one else would get to file for that seat or to run against the justice. Instead, there would be only a vote on whether the justice should be retained in office.

If the governor signs the bill, the question arises: Is a retention election consistent with the North Carolina Constitution’s requirement that justices be “elected” by the voters of the state?

The Missouri Plan

The North Carolina legislation is a variation on the Missouri Plan for selection of judges, long touted as an alternative to electing judges. The classic Missouri Plan starts out differently. There is never a contested election; rather, the governor appoints someone from nominees submitted by a bipartisan nominating commission. The appointed judge serves some period of time before being subject to a popular vote in the form of a yes/no ballot on whether the judge should be retained in office for another full term. If the vote is yes, the judge serves another term; if the answer is no, the selection process starts over. At least two other states, Illinois and Pennsylvania, have Missouri Plan variations similar to H222 — a judge must first win a regular contested election before having retention elections for subsequent terms.

How House Bill 222 would work

House Bill 222 originally was written to apply to the election of both supreme court justices and court of appeals judges, but as finally approved it is limited to the supreme court. The bill requires each justice to face a contested election to start a first full eight-year term, then only retention elections for subsequent terms. If a justice retires or otherwise leaves office at the end of a term, there will be a contested election for the seat, just as now. Once elected, the new justice would serve eight years and then face a retention election. If someone first got on the court by appointment to fill a vacancy in the middle of a term, that person would serve until the next statewide general election, at which time there would be a contested election for the seat. The winner of the contested election then would serve an eight-year term and be subject only to retention elections in the future.

(It appears that a sitting justice whose term is ending actually would have a choice between a retention election or a contested election. The legislation requires the incumbent to declare by July the year before the election the desire to have a retention election. If the incumbent did not so declare, a regular contested election would be scheduled for the office. It would be possible, therefore, for the incumbent to decline to file the notice a year ahead of time and then just run in the contested election the next year with all the other candidates. Perhaps there is a political scenario in which that might make sense.)

The constitutional requirement that judges be elected

“Merit selection” plans like the Missouri Plan have been proposed numerous times in North Carolina in the last 40 years or so, but almost always in the form of a constitutional amendment. Article IV, Section 16 of the State Constitution says supreme court justices, court of appeals judges, and regular superior court judges “shall be elected by the qualified voters.” A separate section provides for election of district judges. It has been thought, therefore, that a constitutional amendment would be needed to use any method other than contested elections. House Bill 222 is premised on the idea, however, that a retention election satisfies the constitutional requirement. Is that right? The question seems to have arisen in only one other jurisdiction, and the answer was yes, but it is not clear the answer would be the same for North Carolina.

The Tennessee Plan

In the early 1970s the Tennessee legislature enacted a plan by which the governor appointed judges to the appellate courts from nominees submitted by a special commission. The appointee would serve until the next statewide general election and then face a yes/no retention vote. If retained, the judge would serve a full term with retention elections at the end of that and any subsequent term.

The Tennessee constitution at the time, like North Carolina’s, said judges “shall be elected by the qualified voters.” Not surprisingly, that prompted several challenges to the validity of the appointment/retention election scheme. In both State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn. 1973), and State ex rel. Hooker v. Thompson, 249 S.W.3d 331 (Tenn. 1996), the Tennessee supreme court — in one instance a temporary version of the court because of recusals — upheld the use of retention elections.

The essence of the Tennessee decisions was that the word “elect” is not defined in the Tennessee constitution and is not limited in general usage to contests between opposing candidates. Citing several provisions of the state constitution that use the word “election” when referring to a yes/no referendum-type vote, the Tennessee court concluded it is within the legislature’s discretion to use a yes/no retention election to satisfy the requirement that judges be elected.

The principal argument on the other side is: If election means a retention election, couldn’t legislators enact retention elections for the governor? Or for themselves? The logic of the Tennessee decisions is, yes, the legislature could do that, but the further response has been that it is too far-fetched an idea to take seriously.

It appears that Tennessee is the only jurisdiction to have had to address this “what is an election” issue, and the Tennessee reasoning has been questioned. There have been numerous other lawsuits about various aspects of the Tennessee plan. For a long while the legislation applied only to the court of appeals and not the supreme court. The nominating commission was allowed to sunset. And voters once rejected a constitutional amendment embodying the use of retention elections. In 2014, however, Tennessee voters approved a constitutional amendment explicitly allowing the use of retention elections for appellate judges. The governor will make the initial appointment, without the involvement of a nominating commission, subject to confirmation by the legislature. A yes/no retention election will be held at the end of each term.

Would North Carolina follow Tennessee precedent?

The Tennessee opinions appear to be of limited use in analyzing the constitutionality of H222 in North Carolina. They rely heavily on the fact that the Tennessee constitution uses the word “elect” in connection with yes/no referenda on other issues. And there has been no convincing response to the frightening prospect that the same reasoning could be used to allow retention elections for governor and legislators and other offices.

By contrast, the North Carolina Constitution appears to use “elect” or “election” only when referring to traditional contested races for office. Nor does the wording of the constitutional provisions about election of judges seem different enough from from the wording about the election of other offices to suggest any logical reason why judges might be elected differently than the governor, council of state and legislators. On the other hand, H222 at least provides for an initial contested election, something missing in Tennessee.

A separate, significant legal problem is North Carolina’s constitutional provision about qualifications for office. Article VI, Section 6 sets out the qualifications for election to office. It has been interpreted consistently to be an exclusive list, barring the General Assembly from adding any other requirements to run for any office. See, for example, Moore v. Knightdale Bd. of Elections, 331 N.C. 1 (1992), which overturned a statute requiring a candidate to resign from a first office before running for a second. If a retention election could be thought to satisfy the requirement of an “election” for the office, it could then be thought that the General Assembly has unconstitutionally added a qualification for being a candidate for that office — to be on the ballot one has to be the incumbent, having been previously elected to the seat.

Who would decide the case?

One difficulty that arose in the Tennessee litigation was who would hear the challenges to retention elections. Because of the interest of sitting justices in the outcome, the 1996 decision was rendered by a “special supreme court” appointed by the governor after all the justices recused themselves. A discussion of the disqualification issue is found in the later opinion in Hooker v. Haslam, 393 S.W.3d 156 (Tenn. 2012).

What would happen in North Carolina if the governor signs H222, it becomes law, and it is challenged? Presumably the lawsuit would be a facial challenge to its constitutionality, meaning that under G.S. 1-267.1 enacted in 2014 it would be heard first by a three-judge panel of superior court judges designated by the chief justice. If the panel found the law unconstitutional, there would be a direct appeal to the supreme court where the recusal question would have to be faced.

Under G.S. 7A-10 four of the seven justices on the state supreme court are needed to conduct business. If too many justices recused themselves from the case, there is nothing in North Carolina law comparable to the Tennessee constitutional provision allowing the governor to appoint an entire temporary court. Our statutes provide only for retired justices to be recalled to serve when a sitting justice is incapacitated (G.S. 7A-39.13) or for the appointment of a single retired justice to replace a sitting justice who is temporarily unable to perform the duties of the office (G.S. 7A-39.14). Given the unusual circumstances, the supreme court might apply the principle of necessity that a judge who should disqualify from a case may go ahead and hear it if there is no one else to take it. Or perhaps the court might send the case to the court of appeals to decide or might rely upon inherent authority to appoint retired justices or judges to sit temporarily for this one case.

If the three-judge panel of superior court judges found that H222 is constitutional, any appeal would go to the court of appeals, not to the supreme court, and there would not be a disqualification issue because the legislation applies only to the supreme court. Maybe a decision of the court of appeals, whatever its outcome, would be the end of the case. Maybe.

]]>http://canons.sog.unc.edu/?feed=rss2&p=81331crowellm@sog.unc.eduPerspective on the Separation of Powers Casehttp://canons.sog.unc.edu/?p=8053&utm_source=rss&utm_medium=rss&utm_campaign=perspective-on-the-separation-of-powers-case
http://canons.sog.unc.edu/?p=8053#commentsTue, 31 Mar 2015 18:03:58 +0000http://canons.sog.unc.edu/?p=8053Earlier this month a panel of three superior court judges held that the General Assembly’s appointment of a majority of members to the new Oil and Gas, Mining and Coal Ash commissions violates the state constitutional provision on separation of powers. The decision, which is subject to direct appeal to the state supreme court, is the most recent litigation in a 30+ years’ tug-of-war between the governor and legislature over administrative agencies. Some perspective on that conflict, and a brief look at how the courts’ view of separation of powers has evolved in recent years, may be useful in thinking about what comes next.

The seeds of executive/legislative conflict

The modern era of separation of powers litigation in North Carolina began in the early 1980s, most often involving disputes between the governor and legislature. Several developments in the 1970s and earlier gave rise to these conflicts.

First, North Carolina was evolving into a two-party state, in 1972 electing Jim Holshouser the first Republican governor since Reconstruction. The General Assembly, on the other hand, remained solidly Democratic for another couple of decades. Conflict was inevitable.

Second, the governor’s office, regardless of the party of the incumbent, had become a more forceful part of state government, and more of a threat to legislative preeminence. The growth in government from the 1930s through today has overwhelmingly been in the executive branch, as government at all levels has taken on more and more functions. Additionally, in North Carolina the governor’s office itself started changing significantly in the 1970s. Beginning in 1977 the governor no longer was limited to a single term. Jim Hunt became the first governor to serve two terms, from 1976 to 1984 — and then he did it a second time, from 1992 to 2000. (The gubernatorial veto did not come until 1996, as North Carolina was the last state to adopt it.)

A third factor in the increasing conflict between the executive and legislative branches was the change taking place in the General Assembly. Stirred partly by a 1971 national report listing North Carolina third from the bottom in effective legislatures, the General Assembly began beefing up its own operation and reducing its dependence on the executive. The legislature, which had not hired its first full-time employee until 1969, created its own fiscal research division in 1971. Soon lawyers were employed to do general research and advise committees. In 1979 the legislature started its in-house bill drafting office rather than relying on the Attorney General. Equally significant, in 1973-74, with the oil crisis playing havoc with the state budget, and a Republican in the governor’s office, the legislature began meeting annually rather than every other year. Thus, just as the governor was becoming a stronger office the legislature, too, was moving toward a more assertive institution with greater interest in the day to day operation of state government.

Finally, state government increasingly turned to administrative agencies to do its work, making separation of powers issues almost unavoidable. The typical administrative agency just does not fit neatly into the classic categorization of three branches of government. Such agencies often blend all three functions — a commission will be empowered to adopt rules (legislative), to issue permits and investigate violations (executive), and hear and decide disputes about violations (judicial). When an agency has a mix of legislative, executive and judicial functions it is harder to say how much control each branch ought to be able to exert over it.

Wallace v. Bone and other litigation

Fueled by the factors just discussed, skirmishes between the legislature and governor began breaking out in the late 1970s. Among the disputes:

State senator I. Beverly Lake, Jr., (at the time a Democrat but later a Republican and later still chief justice) sued over the constitutionality of the Advisory Budget Commission (ABC), a powerful body — notwithstanding the misleading “advisory” in its title —responsible for preparing and overseeing the state budget. The ABC had eight legislators among its twelve members. Lake later withdrew his lawsuit.

The General Assembly created a Rules Review Committee to examine and potentially suspend rules adopted by administrative agencies that exceeded their authority.

A legislative committee took over the state employees’ health plan despite an opinion from Attorney General Rufus Edmisten that the move was unconstitutional.

The new Joint Legislative Commission on Government Operations, created in the mid-1970s, required the governor to seek approval before transferring more than ten percent from any agency line item appropriation.

The disagreements between the governor and legislature came to a head in 1982 in the state supreme court’s decision in State ex rel. Wallace v. Bone, 304 NC 591 (1982). Environmental issues were near the top of the political agenda at that time, and the legislature in 1979 had decided that legislators should occupy four of the thirteen seats on the Environmental Management Commission, two senators and two representatives. Jimmy Wallace, an NC State faculty member, environmentalist and mayor of Chapel Hill, sued, claiming a violation of separation of powers. The supreme court agreed. The court examined the duties of the commission, decided they were clearly executive or administrative in character — drafting regulations, issuing permits, investigating violations, etc. — and held that the legislative branch could not exercise control over the implementation of its acts by appointing legislators to the commission.

(Two other decisions followed Wallace v Bone. A month later the supreme court issued an advisory opinion, Advisory Opinion in re Separation of Powers, 305 NC 767 (1982), that the legislature could not make the governor seek approval for budget transfers since the constitution says the governor administers the budget. Five years later the court in State ex rel. Martin v. Melott, 320 NC 518 (1987), turned away Governor Jim Martin’s objection to the legislature having the chief justice appoint the director of the Office of Administrative Hearings (OAH). The court held that even if OAH was considered an executive branch agency, which was not altogether clear, the appointment of the director was not itself an exercise of executive power. Executive power, it said, is the power of executing the laws, and appointment of the director was not execution of the laws.)

The effect of the Wallace v. Bone decision

The fallout from Wallace v. Bone was considerable. The General Assembly removed legislators from 32 boards and commissions, including the Environmental Management Commission, the Board of Transportation, the Wildlife Resources Commission, and the Social Services Commission. At the same time, though, legislators found other ways to keep a hand on those agencies, such as taking from the Social Services Commission and giving to the legislature itself the authority to set eligibility standards and rates or fees for services.

Five boards, including the Advisory Budget Commission, retained their legislator members but were made advisory. That is, the Advisory Budget Commission actually became advisory. Again, however, the General Assembly found ways to continue its involvement, such as giving itself rather than the governor and ABC the authority to set salaries for various offices including the secretary of revenue, chair of the Alcoholic Beverage Control Commission and commissioner of motor vehicles.

The legislature removed legislator members from another 25 boards and commissions but retained its authority to appoint non-legislators. Attorney General Edmisten had opined that legislative appointment of non-legislators was still allowed under Wallace v. Bone, that the problem was appointment of legislators themselves. This view appeared to be upheld by the court of appeals in North Carolina State Bar v. Frazier, 62 NC App 172 (1983), when a lawyer being disciplined by the State Bar said the disciplinary committee violated separation of powers because some members were appointed by the General Assembly. The court of appeals, echoing the earlier AG’s opinion, only touched on the issue briefly but said the appointment of non-legislators by the legislature did not raise separation of powers issues.

The McCrory v. Berger decision

Now to the three-judge panel’s decision in McCrory v. Berger. In holding that the General Assembly’s appointment of non-legislators to a majority of seats on the three commissions is unconstitutional the panel relied on and quoted extensively from Wallace v. Bone. The panel’s written opinion does not mention the court of appeals’ Frazier opinion which seemed to say it was okay for legislators to appoint commission members so long as they were not legislators. The panel, rather, stuck closely to the analysis of Wallace v. Bone. That is, the panel examined the responsibilities of the three commissions, decided that they all were similar to the Environmental Management Commission when it was litigated in 1982, and that they all clearly were to perform executive functions. The panel concluded, therefore, that the General Assembly cannot encroach on the executive branch by controlling a majority of the members. The panel’s opinion does not discuss the difference between appointing legislators and appointing non-legislators or whether it might be okay to appoint some members provided they are not a majority.

The changing view of separation of powers

The three-judge panel’s reliance on Wallace v. Bone harkens back to a time when the courts took a more rigid approach to separation of powers. Today the judiciary — including the North Carolina supreme court — tends toward a more lenient standard. The supreme court’s analysis in Wallace v. Bone in 1982 was simple and straightforward. Are the duties of the commission executive or legislative in nature? If the duties are executive or administrative, the legislature may not appoint legislators, to do so would be attempting to control the execution of the law, even if legislators were a minority of members. End of discussion.

The analysis might not be the same today. When Wallace v. Bone was being decided, and since then, other courts generally have followed a more flexible, Madisonian view of separation of powers. Most prominent is the United States Supreme Court’s decision in Nixon v. Administrator of General Services, 433 US 425 (1977), the final fight between Richard Nixon and Congress over the Watergate tapes. When Nixon resigned he made a deal with the General Services Administration (GSA) allowing him to control access to his White House recordings. Congress was not happy with that agreement and decided that the GSA should take custody and have control of all recordings though Nixon could still assert executive privilege. Nixon sued, claiming the congressional directive violated separation of powers.

In rejecting Nixon’s claim, the supreme court said his argument “rests upon an ‘archaic view of separation of powers as requiring three airtight departments of government,’” a view that the branches should be entirely free of control or influence from the others. Instead, the court said, it would take “the more pragmatic, flexible approach of Madison in the Federalist Papers.” The proper inquiry, the court said, is whether the legislative action prevented the executive branch from accomplishing its constitutionally assigned functions. “Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.”

In the limited number of separation of powers cases the North Carolina supreme court has considered since Wallace v. Bone it seems to have moved beyond the simple analysis there and appears inclined toward the more flexible approach. In In re Alamance County Court Facilities, 329 NC 84 (1991), a case about the court’s inherent authority to order county commissioners to provide adequate court facilities, the supreme court emphasized that separation of powers does not mean the three branches are entirely independent of each other. The court said overlap of powers is essential to checks and balances: “The perception of the separation of the three branches of government as inviolable, however, is an ideal not only unattainable but undesirable. An overlap of powers constitutes a check and preserves the tripartite balance.” The key to a proper functioning of government, the court said, is not separateness but interdependence and reciprocity. The opinion quoted Madison from the Federalist Papers: “Unless these [three branches of government] be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be fully maintained.”

Recognition of the more flexible approach to separation of powers was stated even more explicitly in Bacon v. Lee, 353 NC 696 (2001). There the court said it was guided by Nixon v. Administrator of General Services in resolving separation of powers issues. The question was not whether a function belonged to one branch of government but whether one branch’s action interferes to the extent of preventing the other branch from accomplishing its constitutionally assigned function — and, if so, whether the action by the intervening branch is justified by an overriding need to promote objectives within its own constitutional sphere of authority.

There are about a dozen other state supreme court decisions on separation of powers since the Alamance County case and none speaks directly to the difference between the Wallace v. Bone analysis and the more flexible approach taken in Alamance County and Bacon v. Lee. Still, there is reason to think that when the court gets McCrory v. Berger it may not adopt quite the same approach as the three-judge panel.

The appeal of McCrory v. Berger

The appeal of McCrory v. Berger will offer the supreme court an opportunity to revisit Wallace v. Bone and more generally revisit the method by which it decides separation of powers cases. None of us knows, of course, how the supreme court will decide the case, but we have some idea as to the possibilities.

The simplest decision to write would be one saying the three-judge panel got it wrong, the General Assembly’s appointment of non-legislators does not present the same threat as the appointment of its own members, regardless of the nature of the commission — therefore, the trial court is reversed, the commissions may continue as enacted by the legislature.

If, however, the supreme court were inclined to uphold the three-judge panel it could be expected to explain why the appointment of non-legislators presents the same harm as the appointment of legislators. And it could be expected to explain in more detail — consistent with the changing view of separation of powers — why the appointment of non-legislators to these particular commissions creates a problem. What is it about the Oil and Gas, Mining and Coal Ash commissions that bars the General Assembly from choosing members? Through such an explanation the court could provide guidance for the many other boards and commissions which presently have legislative appointees. Is the central flaw that the General Assembly appointed a majority of members? If so, how many is acceptable? Is it critical that the commission has functions that overlap with an executive department? May the legislature still appoint members to boards and commissions that seem more remote from gubernatorial power, like the UNC Board of Governors?

Even if the supreme court upholds the decision of the three-judge panel the General Assembly will not lose its ability to influence administrative agencies. One option of particular value might be confirmation of the governor’s appointees. In the 1985 decision in State ex rel. Martin v. Melott, discussed briefly above, the supreme court considered Article III, Section 5(8) of the state constitution which says that the governor’s appointments are subject to the “advice and consent” of the Senate for “all officers whose appointments are not otherwise provided for.” Governor Martin wanted the court to say that provision applied only to constitutional offices. The court instead read it more broadly, holding in effect that the legislature can require any appointment to be subject to confirmation unless the constitution says otherwise. Should the legislature be denied the authority to appoint members of boards and commissions by a final decision in McCrory v. Berger, it would not be surprising to see many more gubernatorial appointments subject to confirmation — just as the General Assembly found various means to keep a grip on administrative agencies after Wallace v. Bone.

]]>http://canons.sog.unc.edu/?feed=rss2&p=80530crowellm@sog.unc.eduThree-judge Panelshttp://canons.sog.unc.edu/?p=7935&utm_source=rss&utm_medium=rss&utm_campaign=three-judge-panels
http://canons.sog.unc.edu/?p=7935#commentsFri, 12 Dec 2014 17:05:12 +0000http://canons.sog.unc.edu/?p=7935Two recent lawsuits have drawn attention as the first to be subject to a new state law treating some constitutional challenges differently from other lawsuits. The first case was brought by the town of Boone, seeking to invalidate a legislative act stripping the town of its extra-territorial jurisdiction. Governor McCrory filed the second lawsuit, disputing the General Assembly’s authority to control the membership of regulatory commissions. Instead of being tried before a single judge, these cases will go before panels of three judges.

Why do these cases, and not others, have to go to three-judge panels?

The answer lies in § 18B.16 of the 2014 budget bill, Session Law 2014-100. That is where the General Assembly set a different path for some constitutional litigation. The law applies to cases filed September 1, 2014, or later, or when pleadings are amended after that date to add covered claims.

The first thing to know is that the new law applies only to “facial” constitutional challenges to legislative acts, raised in civil cases. As discussed further below, a “facial” challenge is an assertion that the facts of the particular case are not critical, the act is unconstitutional on its face, and there is no circumstance under which it can be valid. If, instead, the lawsuit disputes the constitutionality of an act “as applied” to a specific situation, it still will be heard by a single judge as before. And the new law does not apply at all to constitutional questions raised in criminal cases; those continue to be heard by a single trial judge.

The next important thing to know is that the three-judge panel is called upon only if the facial constitutional challenge remains after all other issues in the lawsuit are resolved. Some cases, like those filed by Boone and the governor, will involve only a facial constitutional issue, and they will go straight to a three-judge panel. But when a complaint raises a mix of issues — some statutory, some as-applied constitutional questions, a facial constitutional issue — everything but the facial challenge is to be heard first by a single judge in the ordinary course of business. Usually that will be a superior court judge, but constitutional issues may be raised in district court as well; awarding child custody to non-parents has generated constitutional litigation, for example. Once the single trial judge has decided everything but the facial constitutional issue, the case is transferred to a three-judge panel — if the facial issue still matters at that point — and all other proceedings are stayed by the original trial judge.

The panel is appointed by the chief justice and consists of three superior court judges. Only regular resident superior court judges may serve, not special judges. The judges must come from different parts of the state, one from the east (from divisions 1, 2 or 4), one from the west (divisions 7 and 8), and one from the middle (divisions 3, 5 and 6). The venue for the three-judge panel portion of the case always is in Wake County.

If the three-judge panel decides that the legislative act is facially unconstitutional the state gets a direct appeal to the supreme court. On the other hand, if the panel upholds the act, the case goes back to the original single trial judge, if there was one, for any remaining issues and then follows the ordinary course of appeals beginning with the court of appeals.

(Another change in the law is that if a single judge enjoins the state or a local government from enforcing a state law based on its constitutionality as applied, there is a right to an immediate interlocutory appeal to the court of appeals. The interlocutory appeal does not apply when the judge rules the other way.)

Three-judge panels are not wholly new to North Carolina and some lawyers may remember when they were a standard feature of the federal system. The 2003 legislature created three-judge panels for state court lawsuits over legislative or congressional redistricting, and such a panel heard the lawsuit that followed 2011 redistricting. (The panel upheld the redistricting plan, but the appeal is still pending.) The basics of the new three-judge mechanism are the same as for redistricting cases except that the redistricting panel hears all legal challenges, regardless of whether they are statutory or constitutional and regardless of whether the constitutional argument is facial or as applied.

The law on three-judge panels for redistricting was enacted in the middle of litigation over the post-2000 census reapportionment. When that happened the redistricting plaintiffs also challenged the constitutionality of the panel. In Stephenson v. Bartlett, 358 N.C. 219 (2004), the state supreme court upheld the law. It rejected arguments that the legislature was creating a new court in violation of the state constitution or that the law infringed on the chief justice’s constitutional authority to assign judges.

Federal experience with three-judge panels is more extensive. In the early 1900s Congress began requiring such panels for all lawsuits contesting the constitutionality of state statutes. In 1937 the panels were extended to cases challenging the constitutionality of federal laws. It was one successful part of FDR’s otherwise ill-fated “court packing” proposal. In 1976, however, Congress repealed those three-judge panel laws, finding the procedure too cumbersome and inefficient. It is still the case, though, that when new federal statutes are enacted they sometimes require a three-judge panel to hear challenges to that particular law. Lawsuits over federal campaign finance laws are heard by three-judge panels, for example, as are cases about some of the Great Recession financial reforms.

There is little legislative history for North Carolina’s new three-judge panel law, because it was tucked into the budget bill rather than being debated separately. Presumably, though, one purpose is to expedite the resolution of constitutional challenges to controversial new state legislation. That goal may get sidetracked by confusion over the distinction between facial and as-applied challenges and by the division of authority between single judges and panels.

The concept of facial and as-applied challenges seems understandable enough in theory, but the distinction can be difficult in practice. There is considerable federal case law on the subject, with United States v. Salerno, 481 U.S. 739 (1987), a leading case. It says a facial challenge requires the plaintiff to “establish that no set of circumstances exists under which the Act would be valid.” (at 745). Or, as stated in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008), “that the law is unconstitutional in all its applications.” The test is more complicated when First Amendment issues are involved. There, the courts recognize that a law which may be applied constitutionally to limit the plaintiff’s speech may still be held unconstitutional if it would violate the free speech rights of enough others to significantly chill protected speech. See United States v. Stevens, 559 U.S. 460 (2010). If this interests you, it also is worth looking at Preston v. Leake, 660 F.3d 726 (4th Cir. 2011), a case from North Carolina discussing First Amendment facial challenges and what is called the over-breadth doctrine.

In the limited state case law on facial vs. as-applied challenges, the North Carolina Supreme Court has adopted the federal analysis, saying that a facial challenge requires proof that there is no set of circumstances under which the act could be valid. A leading case is State v. Thompson, 349 N.C. 483 (1998), which denied a facial challenge to an act concerning bail in domestic violence cases but found the law unconstitutional as applied to the defendant.

The problem is that most North Carolina lawyers, and trial court judges, have not had to think in terms of facial or as-applied challenges and may not be quick to recognize what they have. Pleadings do not have to specify which kind of challenge is being mounted, but the judge who first gets the case still has to figure out how much can be decided alone and what has to go to a three-judge panel. Not all lawyers will be prepared to articulate whether their claim is facial or as-applied.

Also, one would think that while some legislative acts will generate simple, one-issue facial challenges, lawyers may be prone to throw in as many statutory and as-applied constitutional claims and other arguments as they can think of. That raises the prospect of a case bouncing between a single judge and a panel, with additional delays because of the problems inherent in scheduling three judges rather than one, and all in Raleigh. There is the potential, too, of conflicting decisions — say the single judge finds the act constitutional as applied but the panel holds it unconstitutional on its face.

The cases filed by Boone and Governor McCrory do not raise these concerns, because they are facial challenges only, but future cases likely will. And the legislature likely will need to tinker with the new law as we gain that experience.

]]>http://canons.sog.unc.edu/?feed=rss2&p=79350crowellm@sog.unc.eduMagistrates and Same-sex Marriageshttp://canons.sog.unc.edu/?p=7901&utm_source=rss&utm_medium=rss&utm_campaign=magistrates-and-same-sex-marriages
http://canons.sog.unc.edu/?p=7901#commentsMon, 03 Nov 2014 20:14:45 +0000http://canons.sog.unc.edu/?p=7901Last month when the federal courts opened the door to same-sex marriages in North Carolina there was a rush to courthouses, where magistrates are the only state officials authorized to perform marriage ceremonies. Some magistrates, because of their religious beliefs, resigned rather than marry same-sex couples. Are magistrates entitled to be excused from performing assigned duties when those duties conflict with their religious beliefs? It is a complicated and politically charged question. This post is an attempt to explain some of the legal issues involved. It expands on Shea Denning’s earlier post on the School of Government’s Criminal Law Blog.

There really are two questions. First, does current law entitle a magistrate to refuse to perform a duty of the office based on the magistrate’s religious beliefs? The answer seems to be no, at least so far has we know from current case law, as discussed below. Second, should magistrates have such a right? You will have to answer that one yourself, but this blog post will try to point out some of the policy considerations to take into account when thinking about the answer.

The office of magistrate — When North Carolina reformed its courts in the 1960s, it eliminated justices of the peace and established a uniform statewide court system with district and superior courts. Magistrates are judicial officials of the district court and are the closest current equivalent to JPs. They are not required to be lawyers, but some are. Most are full time, some part time.

Unlike judges, who are elected, magistrates are appointed, for an initial term of two years and then subsequent terms, if reappointed, of four years. The county clerk of court nominates candidates to the senior resident superior court judge who then appoints. Once appointed, magistrates are supervised and assigned duties by the chief district court judge. The number of magistrates by county ranges from two to 26. Most magistrates’ offices are in the county seats but some are in outlying towns.

Magistrates issue arrest and search warrants and set bail. They also can accept waivers of trial and impose fines for certain minor offenses, pursuant to directions of the chief district judge. When assigned by the chief district judge they may hear civil small claims cases involving up to $10,000. And, of course, they may perform marriages — the only judicial officials, and indeed the only public officials in the state, who may do so.

A magistrate’s rights — A magistrate who has a religious objection to same-sex marriage might claim two different rights to refuse to perform the ceremony. The first would be a constitutional right under the First Amendment and the second is a statutory right under Title VII of the federal Civil Rights Act of 1964.

The constitutional right argument would be that the failure to accommodate the magistrate’s religiously motivated objection violates the magistrate’s right to free exercise of religion. If I am compelled to perform a ceremony that my religion says is wrong, I am being denied the right to freely exercise my religion. In Employment Division v. Smith, 494 U.S. 872 (1990), however, the United States Supreme Court held that religious beliefs do not excuse a public official from complying with a valid, uniformly applied, non-discriminatory law. Oregon had denied unemployment benefits to a worker who asserted a religious basis for using peyote. He had ingested the illegal drug, was fired from his job with a rehabilitation clinic, and was denied unemployment benefits because his dismissal was based on misconduct. The Supreme Court upheld Oregon’s action, saying that excusing Smith from the valid drug and unemployment laws because of his religious beliefs about peyote would “permit every citizen to become a law unto himself.”

The Smith reasoning has been applied to law enforcement officers who wanted to be excused from particular assignments for religious reasons. FBI agent John Ryan of Peoria, Illinois, for example, said that his Roman Catholic faith barred him from investigating antiwar activists. Based on Smith, the federal Seventh Circuit Court of Appeals rejected his First Amendment exercise of religion argument out of hand in Ryan v. U.S. Dept. of Justice, 950 F.2d 458 (7th Cir. 1991). For a similar result see Parrott v. District of Columbia, 1991 WL 126020, 58 Empl. Prac. Dec. P 41,369 (U.S. Dist. Ct., D.C. 1991). There the federal district court denied a District of Columbia police sergeant’s claim of a constitutional right to be excused from arresting anti-abortion demonstrators.

The North Carolina Constitution has its own free exercise provision. Article I, Section 13 is worded differently than the First Amendment, but there is no case law to suggest that it offers any greater right. The state supreme court said in In re Williams, 269 N.C. 68 (1967), that the state’s prohibition on interference with “the rights of conscience” is no broader that the federal right to exercise one’s religion. In Williams the court found that effective operation of the courts was a compelling state interest to require a minister to testify in a criminal prosecution involving members of his church, despite his assertion that his religious obligations prohibited him from being a witness.

Although the gay marriage issue has been percolating for more than a decade now, and magistrates and JPs in other states that preceded North Carolina likewise have declared a conflict with their religious views, there do not appear to be any court decisions saying that a judicial official’s First Amendment rights require exemption from performing the duties of the office.

Title VII — Title VII is a part of the federal Civil Rights Act of 1964 that prohibits discrimination in employment based on religion and other specified grounds. In a nutshell an employee protected by Title VII is entitled to a reasonable accommodation of the employee’s religious beliefs if such accommodation would not impose an undue hardship on the employer. So, if an employee’s faith says not to work on the Sabbath, and the employer has another shift to which to move the employee without causing undue hardship on other employees or on the company’s work schedule, the employee is entitled to the accommodation.

The initial question under Title VII is whether magistrates are employees covered by the act. They may not be. The statute defines an employee as “an individual employed by an employer” and excludes only elected officials, their personal staff, immediate legal advisors — or “an appointee on the policy making level.” One might not normally think of a judge or magistrate as being on a “policy making level,” but that is the holding of several recent federal district court decisions in South Carolina.

In Spann-Wilder v. City of North Charleston, 2010 WL 3222235 (US. Dist. Ct., S.C., Aug. 13, 2010), Nowlin v. Lake City, 2012 WL 831492 (U.S. Dist. Ct., S.C., Mar. 12, 2012), and Burgess v. City of Lake City, 2013 WL 4056315 (U.S. Dist. Ct., S.C., Aug. 12, 2013), three different federal judges held that appointed municipal court judges are not protected by Title VII because they are appointees in policy making positions. Building on the U.S. Supreme Court decision in Gregory v. Ashcroft, 501 U.S. 452 (1991), that judges are exempt from federal age discrimination law because they are at a policy making level, and similar holdings about judges in other lower federal courts, the South Carolina courts decided that the policy-making exemption was intended to embrace judges who exercise discretion concerning issues of public policy in a manner similar to policy-making appointees in the other branches of government.

The municipal court judges described in the South Carolina cases sound a good bit like North Carolina’s magistrates, though it appears that the South Carolina officials have a somewhat wider jurisdiction to hear and decide lower-level criminal cases. A federal court in North Carolina might well follow the South Carolina lead and conclude that our magistrates are not covered by Title VII.

Even if magistrates are covered by Title VII, the question remains whether their religious beliefs must be accommodated. The most relevant cases on the issue would seem to be those involving law enforcement officers — clearly covered by Title VII — who wish to be exempted from certain duties because of religious objections. Of the few such cases, including a couple already mentioned above for their constitutional claims, the decisions generally have turned on whether the agency offered a reasonable accommodation, but several have questioned whether accommodation should even be discussed for law enforcement officers.

The most prominent statement of this view is the concurring opinion of the respected conservative chief judge of the federal Seventh Circuit Court of Appeals, Richard Posner, in Rodriquez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998). A city police officer claimed a Title VII violation in requiring him to stand guard outside an abortion clinic despite his religious objections to abortion. The court decided that the accommodation offered by the city was sufficient, and Posner concurred, but he went on to say that the court should have made a broader decision. Posner wrote that a police department should never have to accommodate an officer who wished to use religion to be excused from protecting someone. To do so would so undermine public confidence in law enforcement that it always would be an undue hardship on the department to grant an accommodation. For both police and fire fighters, he said, the hardship would be “the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.”

The same sentiment is expressed in Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003), where an officer did not want to be assigned to duty at a casino. The court compared law enforcement officers to judges:

Beyond all this is the need to hold law enforcement officers to their promise to enforce the law without favoritism — as judges take an oath to enforce all laws, without regard to their (or the litigants’) social, political, or religious beliefs. Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police. — 349 F.3d at 927.

The notion that the nature of the work of law enforcement agencies and judges requires these officials to perform their duties without regard to their individual beliefs is also expressed in the Parrott v. District of Columbia case mentioned above and in Brady v. Dean, 173 Vt. 542 (2001) (when town clerks expressed religious objections to issuing same-sex civil union licenses).

As with the constitutional claims of public officials who object to performing their duties related to same-sex marriages, there do not appear to be any court decisions clearly recognizing a Title VII right for magistrates. It is not certain that magistrates are even covered by Title VII and, if they are, the need to accommodate them, as the public face of the court system, may not be the same as for other employees.

Judicial ethics — An additional consideration for magistrates is the ethics of their office. Magistrates take the same oath as judges — including the duty to “faithfully and impartially discharge all the duties” of the office — and are subject to the same Code of Judicial Conduct.

The code requires judges to avoid bias and the appearance of bias and to act at all times in a manner that promotes public confidence in their independence, integrity and impartiality. The Commission on Judicial Conduct for Washington applied comparable provisions in that state’s code and admonished a judge for saying he would be uncomfortable performing same-sex marriages and asking his colleagues to take his place for such marriages. Counsel for the Pennsylvania Judicial Conduct Board has advised judges that decisions to refuse to perform same-sex marriages could result in claims of judicial misconduct, and that a decision to not perform any marriages at all because of the objection to same-sex marriages could be interpreted as bias against homosexuals as a class, prompting recusal issues. The New York Advisory Committee on Judicial Ethics in 2011 said, in essence, it was not ready to answer such questions.

Should magistrates be allowed to refuse to perform same-sex marriages? — As already discussed, it does not appear that current law gives magistrates a constitutional or statutory right to refuse to perform their duty of officiating marriages based on their religious objections. It may also be that refusal violates the Code of Judicial Conduct to which they are subject. That leaves the question of whether the law ought to say that magistrates may refuse that duty if it conflicts with a sincerely held religious belief.

Freedom of religion is a fundamental right. We start with the premise that all citizens should be able to exercise their own religious beliefs, and that the state ought not interfere with such exercise. These are important principles. Deciding how to apply them in this particular context is unusually difficult, however.

First, there is the nature of the judicial system and its dependence on public confidence in its fairness and lack of bias. As expressed by Judge Posner and the Code of Judicial Conduct, it is important that the officers of some public institutions appear to always put their personal beliefs aside. As the only public officials in North Carolina empowered to perform marriage ceremonies, magistrates are the public face of the court system in this instance. Along the same lines, accommodating a magistrate in this circumstance might be seen as something different than the usual religious accommodation. Usually, accommodation simply allows individuals to satisfy their only beliefs without affecting the rights of others. Here, though, it might be said that the accommodation of magistrates would result in discrimination against others. And it might be said that allowing a public official to opt out of performing a duty because the affected citizens’ sexual orientation appears to be governmental endorsement of discrimination. Weighing these considerations against a magistrate’s right to exercise his religious beliefs raises difficult public policy questions.

Finally, there is a practical consideration. It would seem to be a considerable challenge to draft legislation that excuses magistrates in this one circumstance but does not open the door to other questions. Would magistrates also be entitled to not issue warrants in domestic violence cases involving same-sex couples? What if the religious objection is to something other than same-sex marriages? Perhaps the magistrate’s beliefs are based on the citizen being Muslim or Jewish or atheist. And what about other officials and other matters involving same-sex couples, like the clerks of court who deal with adoptions? It may be that a very good legislative drafter can craft something that keeps the issue under control, but it appears to be a daunting task.

]]>http://canons.sog.unc.edu/?feed=rss2&p=79012crowellm@sog.unc.eduThat Court of Appeals Ballothttp://canons.sog.unc.edu/?p=7815&utm_source=rss&utm_medium=rss&utm_campaign=that-court-of-appeals-ballot
http://canons.sog.unc.edu/?p=7815#commentsFri, 15 Aug 2014 16:46:17 +0000http://canons.sog.unc.edu/?p=7815In July John Martin, the chief judge of the Court of Appeals, announced his retirement effective August 1st. Given the timing of his decision, state law requires an election in November to fill the seat but no primary in advance to reduce the number of candidates. It appears that everyone who has ever aspired to be an appellate judge sees this as an opportunity to catch the ring, and 19 candidates have filed. One of them will get more votes than the others, though it may not be very many, and will be elected with no run-off. Nineteen candidates, one vote, one time, most votes wins. Some people may think this is not the best way to choose a judge for an eight-year term on North Carolina’s second highest court. How did we end up with such an election?

Nonpartisan elections

Let’s start with North Carolina’s switch from partisan to nonpartisan elections. Until the late 1990s we elected all state judges in partisan elections. Just like the governor and legislators and county commissioners, judicial candidates ran on political party labels. Each party held a primary to determine its candidates and those party nominees faced off in the general election. If a vacancy opened up too late for a primary, as with Judge Martin’s seat, the executive committees of the parties would choose the candidates for the November ballot, one for each party. A nice neat ballot with no undue clutter of candidates.

Starting in 1998, though, North Carolina moved to nonpartisan election of judges. First to be converted were superior court judges in 1998, then district judges in 2002, and finally appellate judges in 2004. Democrats’ and Republicans’ views on the method of selecting judges tend to fluctuate over time, depending on how they think their party will fare. Several events in the 1980s and 90s, when Democrats still controlled the legislature, started the shift toward nonpartisan elections. Election of superior court judges had to be changed — remember when they were nominated in primaries in their districts but were then subject to a statewide general election? — because of two lawsuits. One was a Voting Rights Act lawsuit claiming that the system discriminated against African Americans, and the other a Republican lawsuit contending party discrimination. Add to the litigation the fact that Republicans started winning some statewide elections and the move to nonpartisan elections began.

With nonpartisan elections, of course, the political parties have no role in nominating candidates. In regularly scheduled judicial elections the November ballot is shortened to two candidates per office by having a nonpartisan primary in the spring. But when a vacancy occurs too late for the primary, as with the Martin seat, the election has to be open to any qualified candidate who wants to run.

Eight-year terms

A second change encouraging candidates to run for vacancies has been the reward of an eight-year term. Until 1995 when a vacancy arose in the middle of a term there would be an election to choose someone to fill the remainder, but only the remainder, of the unexpired term. John Martin was elected to the Court of Appeals in 2008. Under the old system the winner this November would serve only until 2016, that is, just two years, at which time there would be an election for a full eight-year term.

In the early 1990s Governor Jim Martin, taking a different view of the state constitution and statutes on vacancies, issued eight-year commissions to several appellate judges, including Bob Orr, who had been elected to fill unexpired terms. The governor’s position was that constitutionally all elections had to be for eight-year terms. Superior court judge Tony Brannon disagreed and sued when the State Board of Elections did not put Orr’s Court of Appeals seat on the ballot in 1992. The Supreme Court dodged the constitutional issue in Brannon v. North Carolina State Board of Elections, 331 N.C. 335 (1992), but interpreted the statutes to mean a vacancy election was only for an unexpired term. Brannon, thus, won the right to run in 1992. He lost to Orr.

Both political parties — and particularly the appellate judges in both parties — decided the Brannon decision was bad policy, prompting the General Assembly in 1995 to declare that all appellate judicial elections are for eight-year terms, even if prompted by a vacancy. The same rule was extended to superior court vacancies in 1996 (except, for a time, vacancies in some districts that were part of the earlier voting rights litigation).

(If you are wondering, there are no elections to fill vacancies in district court judgeships, which have only four-year terms. Regardless of when the vacancy occurs during the term, the appointed replacement serves the remainder of the term.)

The 2004 election

By 2004, then, the law provided that judicial elections were nonpartisan and that elections to fill vacancies were for full eight-year terms. And under general state law, if a vacancy occurred too late for a primary there would be a single winner-take-all election, most votes wins. When Bob Orr, by this time on the Supreme Court, resigned his seat in the middle of 2004, eight candidates signed up for the November vacancy election. Paul Newby led with 583,000 votes out of almost 2.6 million cast and got a full eight-year term. He had received about 22 percent of the votes.

To some the 2004 result did not seem quite right, that someone should be elected to a full eight years on the state’s highest court with less than a quarter of the votes in a hurry-up election. Consequently the legislature was convinced in 2006 to make a drastic change in voting for such elections.

Instant run-off voting

Instant run-off voting is one of those schemes that delights political scientists but puzzles the average person in the street. As enacted in 2006, if there was a late judicial vacancy there would still be a single election in November open to all qualified candidates. When voters went to the polls, though, they would do something more than just check the name of a single candidate. A voter could place a 1, 2 or 3 next to their top three choices. If no candidate got a majority of 1 votes, the 2s and 3s would be counted in some fashion to figure out who really had the most overall support. The idea of instant run-off voting is to show who might prevail in a run-off without really having a second election. Don’t ask me to explain further.

In 2010 we got to see instant run-off voting in action. When a vacancy arose late for the Court of Appeals, 13 candidates filed. Cressie Thigpen led with 395,000 of the nearly two million votes cast, 100,000 votes ahead of second-place Doug McCullough, but Thigpen was far short of a majority. Consequently, the counting of 2s and 3s kicked in. McCullough ended up the winner, and maybe a few people understood the math.

The 2013 General Assembly

The General Assembly’s recent reworking of election laws included two significant changes in judicial elections. First, the legislature eliminated public funding of appellate judicial elections. Started at the same time as the switch to nonpartisan elections in 2004, public funding allowed appellate candidates who demonstrated a certain level of statewide support through their own fundraising to receive a set amount of public funding — generally just a couple of hundred thousand dollars — in exchange for agreeing not to accept political contributions. The intent was to reduce the influence of special interest groups in judicial elections.

Public funding proved popular with candidates but not with the Republican majority that gained control of the legislature in 2013. The idea of using public funds to pay for individual candidates’ campaigns had always been controversial, and it was repealed.

The second change that was enacted was to eliminate the use of instant run-off voting. There isn’t any clear record why it was dropped. Maybe it just seemed too odd.

The 2014 ballot

For 2014, therefore, we are back to where we were before 2006. We have a reprise of 2004 with a mighty host of candidates competing in a single plurality election for an eight-year appellate term. With 19 people in the field — including two former Court of Appeals judges, one ex-superior court judge, at least one sitting district court judge, a former State Board of Elections member, a prominent ex-legislative staffer, and lots of others — it’s unlikely anyone will come close to a majority.

Given the number of candidates, the short time for campaigning, the low attention paid to judicial races, and the drop-off in voting for judgeships, someone is likely to win with a small percentage of votes. In 2012 about 4.5 million North Carolinians voted for president, and over 4.3 million for superintendent of public instruction, but by the time voters got down the ballot to the Supreme Court only 3.5 million were still voting. The number was lower for the Court of Appeals seats. Those were simple one-on-one judicial elections, fairly easy choices. How many voters will skip the Court of Appeals vacancy when they see 19 unfamiliar names? And what percentage of the total votes will any one candidate get?

There is another possibility for the November election, maybe more worrisome. Because of the large field of candidates and the minimal attention the election will receive, it might take only a modest investment by a special interest group to sway the outcome. With no public funding, candidates must resort to traditional fund raising, and some interest groups may see an opportunity. Furthermore, with restrictions lifted on independent organizations’ spending on campaigns, and corporations allowed to contribute to those efforts, an interest group operating essentially anonymously under a vague name — say, North Carolinians For Real Justice — could put a few hundred thousand dollars into the campaign at the last minute in favor of a single candidate, tipping the race and realizing an outsized dose of influence.

North Carolina has struggled for decades to figure out the best way to elect judges. The 2014 Court of Appeals vacancy may prompt additional debate on the subject.

]]>http://canons.sog.unc.edu/?feed=rss2&p=78150crowellm@sog.unc.eduDo Election Laws Affect Voter Turnout?http://canons.sog.unc.edu/?p=7557&utm_source=rss&utm_medium=rss&utm_campaign=do-election-laws-affect-voter-turnout
http://canons.sog.unc.edu/?p=7557#commentsFri, 07 Mar 2014 19:42:06 +0000http://canons.sog.unc.edu/?p=7557For the last 30 years North Carolina, like most states, has been making it easier to register and vote. In the early 1980s the only way you could register was to go before an official of the local board of elections in person. Since then registration has been expanded to driver license offices and other government agencies, and now is available online. Once you register your name no longer is removed if you fail to vote in several consecutive elections, as used to be the case. Absentee voting previously was available only by mail and was reserved for voters who could not get to their precinct on election day; in recent years “early voting” polling places have been open for nearly three weeks before election day for anyone who wants to cast a ballot in advance. Other changes also have made registration and voting more convenient.

In 2013 the General Assembly backtracked on some of those voting changes. The most significant actions were the shortening by one week of the time for early voting and the elimination of same-day registration and voting. Before the new rules take full effect with the 2014 election it may be a good time to ask what difference those election law changes of the last several decades made in whether people voted. Did any of the expanded opportunities to register and vote added since 1980 appreciably affect voter turnout or not?

The answer is not clear cut. In tracking voter turnout with election law changes since 1980 it is hard to discern that any particular election law change has made an appreciable difference in how many people vote. Yes, voting in North Carolina in the last two presidential elections was notably higher than before, but other presidential elections have not brought as many people to the polls, and turnout in non-presidential elections is still as low as ever. It may be that the 2008 and 2012 presidential year jumps are simply anomalies, with unusually high interest, and not indicative of any trend.

While this review of North Carolina data is not very sophisticated, it is consistent with recent political science research, discussed below, which suggests that early voting may actually decrease voter turnout. The same research shows, on the other hand, that same-day registration and voting can increase turnout somewhat. When done together, early voting and same-day registration neutralize each other. And, as one might expect, factors other than election laws have more to do with how many people vote.

The data

Data about voter turnout and election law changes in North Carolina from 1980 through 2012 is found on this chart:

The chart shows the percentage of the state’s voting aging population that voted in each general election in November of even-numbered years since 1980. Voting age population is used rather than registered voters because the law on purging the voter rolls changed in the mid-1990s. The data on which the chart is based is here. On the chart each election is marked to indicate whether it included a race for president or the United States Senate, the most prominent statewide elections. A list of all elections may be found here.

The election law changes

Along the bottom of the chart are notes indicating significant changes in the laws governing registration and voting. The changes are:

1983 — For the first time voter registration became available at some driver license offices and public libraries, rather than voters having to go before board of elections officials.

1987 — Political parties were given the option of allowing unaffiliated voters to vote in their party primaries, which both Democrats and Republicans have done since then.

1992 — The deadline for registering to vote was extended by one week to allow registration up to the 16th weekday before the election rather than the 21st weekday.

1995 — Registration by mail became available; all driver license offices started registering voters; and a voter’s registration was no longer purged for failing to vote for two presidential election cycles.

2001 — No-excuse, one-stop absentee voting at early voting sites, popularly known as “early voting,” became part of all elections.

2005 — Online registration became available; all voters were given access to provisional ballots when there are questions on election day about their eligibility; the statewide computerized registration system was established.

2007 — Citizens could register to vote and cast a ballot at the same time at early voting sites during the early voting period.

Some observations

What do the data show about turnout over the 32 years? The chart is a busy document and offers an opportunity for lots of interpretation. Here are a few observations about the data:

Not surprisingly, turnout is always higher in presidential election years than any other time. The lowest turnout for a presidential election year was in 1988 when 43.7 percent of the voting age population voted in George Bush’s lopsided win over Michael Dukakis. By contrast, the highest turnout in a non-presidential year was two years later when 41.2 percent voted in the first of the high profile U.S. Senate contests between Jessie Helms and Harvey Gantt. The highest turnout for a presidential election year, 62.9 percent in 2008, is over 20 points higher than that highest non-presidential-year Senate race.

Turnout in presidential election years varied little between 1980 and 2000, regardless of the closeness of the contests or any election law change. The turnout percentages for those six elections, and the results of the presidential voting in North Carolina:

1980 — 43.9 percent (Reagan edges Carter 49.3 to 47.2 percent)

1984 — 48.8 percent (Reagan routs Mondale 61.9 to 37.9 percent)

1988 — 43.7 percent (Bush routs Dukakis 58 to 41.7 percent)

1992 — 50.1 percent (Bush edges Clinton 43.4 to 42.7 percent)

1996 — 44.4 percent (Dole beats Clinton 48.7 to 44 percent)

2000 — 49.6 percent (Bush beats Gore 56 to 43.2 percent).

Turnout increased in presidential years after 2000. In 2004 turnout moved up to 54.9 percent of voting age population even though the Bush/Kerry contest was not close (56 percent to 43.6). Then in 2008 the turnout jumped to 62.9 percent as Obama defeated McCain by only 14,000 votes in North Carolina (49.7 percent to 49.4), and in 2012 it was still at 61.8 percent as Romney edged Obama (50.4 percent to 48.4).

Despite the increases in turnout in presidential years from 2004 on, there was no obvious change in non-presidential years. In fact, the turnout for non-presidential years seems not to have changed much since 1980. More people vote in years when there is a Senate race, but turnout for non-presidential years is consistently low. The turnout for the non-presidential years (and the Senate races on the ballot):

1982 — 30.1 percent (no statewide election)

1986 — 33.6 percent (Sanford v. Broyhill)

1990 — 41.2 percent (Helms v. Gantt)

1994 — 28.2 percent (no statewide election)

1998 — 34.1 percent (Edwards v. Faircloth)

2002 — 37.4 percent (Dole v. Bowles)

2006 — 30.4 percent (no statewide election)

2010 — 37.9 percent (Burr v. Marshall)

Possible conclusions?

What conclusions can one reasonably draw from the data? The data seems to support these statements:

The changes in election law since 1980 do not appear to have appreciably affected voter turnout as a whole. It may be that the voting patterns of some categories of voters have been affected, but overall voter turnout after the changes does not look much different than before. If making registration available in more places made a difference, one would have expected a noticeable uptick in turnout after the 1995 opening of more registration opportunities and the end of purges for not voting, but that did not happen. And if changes in voting law were critical to turnout, one would expect any increase to occur across all elections, not just presidential elections, but that has not happened either.

Although one-stop early voting is enormously popular — a majority of votes in the 2012 general election were cast at one-stop sites before election day — the evidence does not seem to indicate that it increases turnout. In the elections since no-excuse one-stop voting became available for all elections there was no noticeable increase in turnout in the 2002 Senate election; a modest increase in the 2004 presidential election year; the same predictably low turnout in the 2006 election without a statewide contest; a significant increase in the 2008 presidential election; no obvious increase from previous non-presidential elections in the 2010 Senate race; and another high turnout in the 2012 presidential election. If early voting mattered that much by itself, one would have expected a more consistent pattern of higher turnout over those years. It may be that early voting, for the most part, simply makes it easier for people who would have gone to the polls anyway.

Turnout for the 2008 and 2012 presidential elections — but not the intervening 2010 Senate election — was noticeably higher than before, and there must be an explanation. Were the increases simply the result of the dynamics of those two particular elections or did changes in the law have some effect? The explanation for those two elections may be Barrack Obama. It may be the closeness of the contests. It may be the presidential campaigns’ newfound savvy with social media and targeting their supporters to get them to the polls. Or it may be something else. One possibility might be same-day registration and voting.

The last significant election law change to take place before the high-turnout 2008 and 2012 elections was the introduction of same-day registration and voting during the early voting period. That is, a citizen who had failed to register by the regular registration deadline, 25 days before the election, could apply to register and could cast a ballot at a one-stop site during the early voting period, up until the Saturday before the election. Because election interest peaks near election day, allowing registration so much closer to the actual election day could be expected to bring to the polls some voters who had neglected to register earlier and otherwise would not have been able to vote.

Same-day registration and voting seems to have helped with turnout, though not in sufficient numbers to fully explain the high percentages of voters in 2008 and 2012. About 4.4 million North Carolinians voted in the 2008 election and about 4.5 million in 2012, and in each year about 100,000 of those voters registered and voted at the early voting sites. If those late registrants were subtracted from the number of voters, the turnout in 2008 would have been 61.4 percent of the voting age population rather than 62.9, and in 2012 it would have been 60.5 rather than 61.8. Assuming that none of those late registrants would have found a way to register earlier, it could be argued that same-day registration and voting at early voting sites increased voter turnout by about 1.5 percent in 2008 and 1.3 percent in 2012. (In 2010, the non-presidential year with a Senate election, only about 22,000 of the 2.7 million voters were early voting registrations, possibly meaning an increase of three tenths of a percent in turnout.) It could be that same-day registration and voting at early voting sites — effectively extending the deadline for registration by several weeks — helped fuel the upswings in turnout in 2008 and 2012, but not nearly enough to explain why those two elections had such higher participation than before.

In sum, based on this limited analysis, the changes in North Carolina’s registration and voting laws over the last 32 years appear not to have made a significant difference in how many people vote. While it has become noticeably easier to register to vote, and to stay on the rolls, about the same proportion of citizens go to the polls now as before. It seems more likely that voting depends on factors such as the nature of the election, how much seems to be at stake, the level of media coverage, and how much effort candidates and parties put into identifying and mobilizing their voters. The one state election law change that might be argued to have boosted turnout is the 2007 legislation, repealed in 2013, to extend the deadline for registering by allowing same-day registration and voting during the early voting period. With even the most generous assumptions, however, that change in the law could not be said to account for more than 1.5 percent of turnout.

National research

This view of North Carolina’s experience is consistent with recently reported political science research on the effects of election law changes. In an article published in the American Journal of Political Science earlier this year researchers from the University of Wisconsin report from a study of all 50 states, perhaps surprisingly, that early voting decreases voter turnout when implemented by itself. They also say that same-day registration and voting increase turnout, and that the combination of early voting and same-day registration and voting pretty much cancel out each other. That is, if a state had only early voting it probably would see a drop in turnout, and if it had only same-day registration and voting it probably would see an increase — and that when a state has both early voting and same-day registration the latter makes up for any decrease in turnout resulting from the former. One of the researchers’ analytical methods suggests that on average early voting decreases turnout by about three to four percent and same-day registration and voting increases it by about the same level. Other analysis produces different numbers but the same general conclusions.

Why would early voting decrease turnout? The researchers suggest that early voting mainly benefits people who would vote anyway. They postulate that spreading voting over several weeks, instead of a single election day, reduces the effectiveness of election day as a social event in which election interest peaks. With early voting there is less election day water cooler talk and other buzz that stimulates people to go to the polls. They also see some evidence that when early voting is available political campaigns advertise less right around election day and draw down their efforts to mobilize voters specifically for old-fashioned election day, the Tuesday after the second Monday in November. At the heart of their analysis is a recognition that election law changes do not operate in a vacuum, that any change in registration or voting rules also affects how candidates and political campaigns and the media behave, and that the behaviors of those other actors is far more important in determining who goes to vote.

The Wisconsin political scientists’ study is more sophisticated than the analysis reported here for North Carolina, and the questions raised here would benefit from a more thorough study. It would be worthwhile to see, for example, whether the registration and voting changes over the years have affected white and black voters differently. We know that while African Americans make up only about 21 percent of the state’s voting age population they accounted for over a third of the voters using the same-day registration and voting option in both 2008 and 2012. Election changes also affect the major political parties differently. For example, over twice as many Democrats as Republicans used same-day registration in 2008, and nearly twice as many in 2012. We might learn more about the effects of election law changes by exploring these racial and party differences over time.

Comments, other explanations?

Comments and speculation on the questions raised in this blog post are welcome.

]]>http://canons.sog.unc.edu/?feed=rss2&p=75570crowellm@sog.unc.eduWho Doesn’t Have a Voter ID?http://canons.sog.unc.edu/?p=7443&utm_source=rss&utm_medium=rss&utm_campaign=who-doesnt-have-a-voter-id
http://canons.sog.unc.edu/?p=7443#commentsThu, 05 Dec 2013 17:45:53 +0000http://canons.sog.unc.edu/?p=7443Hotly debated before its enactment and challenged in lawsuits since, North Carolina’s new photo identification requirement for voting goes into effect in 2016. Is it a genuine bulwark against fraud, providing confidence in elections, or is it a partisan attempt by one political party to suppress the vote of the other? That argument doubtless will go on for some time. A more practical question is how many voters will be affected because they do not have an acceptable ID.

The State Board of Elections took a first bite at answering that question in April 2013 but its report has received surprisingly little attention. Especially surprising because the board has identified by name and address each voter who may not have the necessary identification.

The State Board was attempting to get a general idea of how many people might be affected by the photo identification requirement. To do so, they matched the full statewide list of about 6.5 million registered voters with the more than 12 million Division of Motor Vehicles’ records of state driver licenses and DMV-issued non-driver ID cards. (For simplicity, let’s use “driver license” for both cards.) The goal was to see how many registered voters had a driver license and how many did not. Voters who do not have a driver license may have another form of acceptable voter ID, such as a passport or military ID, but the license is the most common identification and the non-matches should give a good picture of the number of people who could be affected by the new law.

In the first run the State Board matched exact first and last names and driver license or Social Security numbers of voters with the DMV list. (Driver license and Social Security numbers were not required for registration until 2004, and still are not found on older registrations.) But sometimes names do not match exactly because of misspellings, misplaced initials, and similar minor discrepancies, so the State Board went through more than two dozen additional cuts of the data, looking for similar first names, similar last names, matching birth dates, identical street addresses, and a variety of other combinations. In each instance the board was trying to find enough matches to offer reasonable assurance that the voter and driver license holder were the same person even if not every data point was an exact match.

What the State Board found was that it could confidently match over 95 percent of its 6,425,820 voter registration records with a driver license — but could not match 318,643 voters. At first blush, then, it would appear that there could be over 300,000 North Carolinians who are not prepared to meet the voter ID requirement when it takes effect in 2016. Further analysis from the State Board, though, reduces that number significantly.

First, keep in mind that the State Board was attempting to find matches for all the names in its voter registration list, some of whom surely are no longer eligible voters. Voters move away, for example, but their names may remain on the rolls. Since the mid-1990s, federal law has halted purging the names of voters who have stopped voting on a regular basis. To comply with that law, the state now has an active voter list and an inactive voter list (the inactive list is generated primarily by election mailings returned as undeliverable) but all are considered registered voters.

Over 60,000, or about 20 percent, of the 318,000 non-matching names were from the inactive list. Additionally, the board found that 115,000 of the 318,000 voters for whom no driver license could be found had not voted in any of the last five general elections or any election in between. That result suggests that over a third of the voters who appear not to have a driver license are no longer voting in North Carolina, and in a perfect world they would not be on the voter rolls at all.

In the most useful part of the report the State Board looks at 138,425 registered voters who in fact voted in the 2012 general election but do not match as having driver licenses. There is no question these are active voters, and they appear likely to not have a photo ID. Of those 138,000 non-matching voters, 81,000 were registered as Democrats, 30,000 as Republicans, and nearly 27,000 unaffiliated. Thus, of the people who voted in 2012 but may not have a driver license, about 59 percent were registered Democrats, 22 percent were Republican, and nearly 20 percent were unaffiliated. Democrats made up 43 percent of registered voters in November 2012, whereas nearly 31 percent of registered voters were Republican and 26 percent were unaffiliated. A majority, about 44,000, of the 81,000 registered Democrats who did not match DMV lists were African American; about 30,000 were white.

From those raw numbers it would appear that the photo ID requirement is likely to affect Democrats more than Republicans and unaffiliated voters, and is likely to affect black Democrats more than anyone else. A word of caution is in order, however. The data itself raises many questions and makes any conclusion shaky.

For one thing, there is an odd disparity between female and male non-matches. Of the total 318,643 non-matches the State Board came across nearly twice as many were women as men. Similarly, 85,263 or nearly 62 percent of the 138,425 non-matching voters who voted in the 2012 general election were female. It may be that women really are that much less likely than men to have driver licenses — or it may be that disproportionately more female voters failed the State Board criteria for reliable matches because they are more likely than males to change names when marrying or divorcing, resulting in different names on voting and DMV records. Or there may be some other explanation.

Another kind of disparity that raises questions is the difference in the percentages of non-matches from one county to another. Mecklenburg and Wake Counties, for example, both have around 640,000 registered voters, but the State Board found over 40,000 non-matches for Mecklenburg and fewer than 25,000 for Wake. It appears that in most counties about four to six percent of registered voters did not match the DMV database, but a few counties stand out with higher rates of non-matches. In Durham, for example, 19,000 out of 200,000 voters did not square up with driver license records, almost 10 percent. Cumberland and Robeson both had non-matching rates of nearly nine percent, and Orange and Onslow were over seven percent.

What might explain those differences from one county to another? Perhaps the higher rates of voters without matching driver licenses in Cumberland and Onslow are somehow related to the number of military personnel there, and that might even be a factor for neighboring Robeson. And maybe the high number of non-matches in Orange is affected by the large student population. There is no obvious explanation. And what explains Durham? And why the big difference between Wake and Mecklenburg?

The State Board of Elections report did not attempt to dig deeper. It was looking only for a big picture of how many voters might be affected by the photo ID requirement. A closer look at the results — the number of inactive voters, the disproportionate number of women, the differences between counties, etc. — shows that one should not take at face value the suggestion that there are 318,643 voters who do not have a photo ID. And the mix of people who actually do not have IDs, the proportions of women and men, Republicans and Democrats, may be different than in that group of 318,643. Still, one reasonable conclusion from the study is that about 150,000 to 200,000 active voters in North Carolina may not have a driver license, and if they do not have a driver license it seems unlikely they will have one of the other forms of acceptable identification.

Most importantly, the State Board’s study has resulted in a list by individual name of registered voters who may not have IDs and may need assistance in getting one between now and 2016. The consequence of the April 2013 study is that the State Board knows the name, address and precinct of each registered voter whose name does not clearly match a driver license. Election officials, political parties, candidates and civic groups can take that list to contact those individuals and assist them, if needed, in meeting the new identification requirement.

]]>http://canons.sog.unc.edu/?feed=rss2&p=74430crowellm@sog.unc.eduA Possible Unexpected Result of the Supreme Court’s Voting Rights Decisionhttp://canons.sog.unc.edu/?p=7374&utm_source=rss&utm_medium=rss&utm_campaign=a-possible-unexpected-result-of-the-supreme-courts-voting-rights-decision
http://canons.sog.unc.edu/?p=7374#commentsTue, 22 Oct 2013 19:02:36 +0000http://canons.sog.unc.edu/?p=7374Many commentators saw the United States Supreme Court’s June decision in Shelby County, Ala., v. Holder, ___ US ___, 133 SCt 2612, eliminating the preclearance requirement of Section 5 of the Voting Rights Act, as a significant setback for African American voters. In at least one area of the law, however, the consequences of Shelby County may turn out different than expected and actually may increase the influence of African Amercian voters. That area is redistricting.

To explain, it’s necessary to start with a brief reminder of redistricting strategy.

Packing as accepted redistricting strategy — The two major parties share a common goal in redistricting: you place as many of the other parties’ voters into the fewest districts possible and thus leave more seats for your own party. When Democrats are in charge they will recognize that there are certain areas where Republicans are in the majority and will elect legislators. There is no point in trying to eliminate all Republican districts; it cannot be done. The strategy, therefore, is to pack as many likely Republican voters as possible in a few districts so they have less influence on other seats. For Democrats, a 70 percent Republican district is preferable to a 55 percent district because it removes more Republican voters from neighboring districts and improves the Democratic advantage there.

Republican redistricting strategy follows the same reasoning: concede that there will be Democratic seats but load as many Democrats as possible into those districts, reducing their influence elsewhere. And the most predictable and easily identifiable Democratic voters are African Americans.

How minority districts help Republicans — For the reason just discussed, it has long been understood by politicians in both parties, but perhaps not by the general public, that the Republican Party benefits from majority African American districts. African Americans are the most consistent Democratic voters. Putting as many of them as possible into their own districts takes that many Democratic voters away from affecting the results in other districts. Consequently it is generally in the interest of Republicans in redistricting to draw as many majority African American districts as they can. But to what extent does the law allow districting based on race?

The law of racial redistricting — The basic legal rule, established by the United States Supreme Court in Shaw v. Hunt, 517 US 899 (1996), a North Carolina case, is that redistricting is subject to the same equal protection analysis as other government actions involving race. That is, the use of race as the predominate factor in drawing election districts is subject to strict scrutiny by the courts and is constitutionally permissible only when needed to serve a compelling governmental interest and only when the consideration of race is narrowly tailored to serve that compelling interest.

A complementary decision to Shaw is Stephenson v. Bartlett, 355 NC 354 (2002), from the North Carolina Supreme Court. There the court held that the state constitution’s “whole county provision” barring the splitting of counties between legislative districts, previously thought to have been superseded by federal law, has to be honored to the extent it can without violating federal law. The effect was to impose a rule of rough geographical compactness on legislative districts, allowing bug splats and other odd configurations only when necessary to satisfy the constitutional requirement of one-person/one-vote or federal voting rights.

Taken together, Shaw and Stephenson establish that legislative districts in North Carolina generally should have some tie to county lines and may meander around to link pockets of black voters into a majority in a district only when there is a compelling reason for doing so.

The only compelling reason recognized by the courts thus far for drawing districts based on the inhabitants’ race is to comply with the Voting Rights Act. In North Carolina that has had two meanings. One is to comply with Section 2 of the Voting Rights Act; the other is to comply with Section 5.

Section 2 of the Voting Rights Act ― Section 2 is a nationwide prohibition on discrimination in elections. It was not at issue in the Shelby County decision and remains fully effective. Section 2 is important for redistricting because it was the basis for the US Supreme Court’s 1986 decision in Thornburg v. Gingles, 478 US 30, that first caused North Carolina to start drawing majority black districts. The court held in Gingles that countywide, multi-seat legislative districts in a few parts of North Carolina were unlawful because they submerged concentrated blocks of African Americans in large, majority white districts and kept them from electing candidates of their choice.

The remedy for the Section 2 violation, the Gingles court decided, was to split those large multi-seat districts into single-member districts, some of which would have African American majorities. As a result of Gingles, Wake County, for example, went from electing six members of the state House of Representatives from the county at large to six separate districts, one of which was given a black majority.

Although the Gingles decision is more than a quarter century old, was based on voting patterns that existed in the 1960s and 1970s, was limited to a small number of counties, and did not include an ongoing court order to maintain majority minority districts, each subsequent General Assembly has felt that Gingles compels it to continue to draw majority black districts in some parts of the state. Indeed, those districts have been extended to areas of the state never at issue in Gingles.

Section 5 ― The other Voting Rights Act justification for using race to draw districts has been Section 5. It is the part of the Voting Rights Act requiring certain jurisdictions with a history of racial discrimination to have any changes in election law or practice approved — “precleared” — by the US Justice Department or the federal court for the District of Columbia before they take effect. Election changes are denied preclearance when they seem likely to make it more difficult for African Americans to vote or elect candidates, i.e., when the changes are considered “retrogressive.”

Entire southern states such as Alabama, Mississippi and Georgia have been subject to this preclearance requirement as have been 40 counties in North Carolina. Statewide election changes in North Carolina also have required preclearance because they affect those 40 counties. One of the most significant election changes subject to preclearance has been the redistricting that occurs after each census. Because district lines have such great effect on who may be elected, those submissions have received particularly close scrutiny and have often prompted revisions to better the prospects of African American voters.

Once North Carolina embarked on drawing districts with African American voting majorities in the late 1980s and early 1990s, Section 5 prevented the General Assembly from ever going back to fewer such districts. And when the Justice Department said the state could do more the legislature usually complied. Each new redistricting plan had to attempt to achieve the same level of African American representation as the previous decade or run the risk of being considered retrogressive and failing preclearance.

Thus for the last three rounds of decennial redistricting ― after the 1990, 2000 and 2010 censuses ― the General Assembly has had a compelling justification for using race as a predominate factor in drawing legislative and congressional districts: compliance with the Gingles decision under Section 2 of the Voting Rights Act and meeting the preclearance requirements of Section 5. But the Shelby County decision now takes Section 5 out of play.

The Shelby County decision — In Shelby County the Supreme Court held that the formula for deciding who was subject to Section 5 — based in part on the proportion of eligible voters registered or voting in 1964 — was too out of date to still be used.

Theoretically Congress can rewrite the coverage formula and revive Section 5, but for now and the foreseeable future preclearance is dead. No longer does Section 5 require the General Assembly to submit its redistricting plans for preclearance or to draw majority black districts to assure that African American voters keep the same level of representation in the legislature and in the state’s congressional districts.

With one of the principal compelling reasons for North Carolina’s racial gerrymandering removed, where does that leave redistricting? And how might it affect the two major political parties? The current litigation over the most recent round of redistricting may give an idea of what to expect in the future.

The arguments about race in the 2011 redistricting — Two lawsuits were filed over the 2011 redistricting, one by a mixed group of black and white citizens, the other by the NAACP, League of Women Voters, Democracy NC and others. At the heart of both complaints is the claim that the Republican controlled General Assembly drew districts based on race in a way that cannot be constitutionally justified. The argument is that bizarre lines were used to pack African Americans into districts in violation of the US Supreme Court’s admonitions in Shaw against racial gerrymandering and contrary to the NC Supreme Court’s Stephenson ruling on not splitting counties unless necessary to comply with federal law.

Note that in the current litigation it is African American plaintiffs who are complaining that the legislature drew too many districts with African American majorities. They argue that a district does not need a majority black voting age population for African Americans to be able to elect candidates — 40 percent or so would suffice, they say — and that the effect of putting so many black voters together in a district is to reduce their influence elsewhere.

The legislature’s answer to the racial gerrymandering claim? It is, in part, that even if race was the predominate factor in drawing some districts there was a compelling governmental interest in doing so, compliance with the Voting Rights Act. That is, the majority black districts, some quite contorted, are required by Section 2 and Section 5.

A three-judge panel of superior court judges upheld the redistricting plan and the appeal is now before the North Carolina Supreme Court. The issues are more complicated than discussed here, but the justification for drawing districts based on race still is central to the case. The trial court said the Shelby County decision did not need to be considered in the current litigation because Section 5 and preclearance still were in effect in 2011 when the districts were drawn. But Shelby County clearly will affect redistricting after the 2020 census and the arguments made in the present lawsuits may have greater traction.

Race and redistricting after the 2020 census — One way or the other the use of race in drawing congressional and legislative districts after the next census is likely to be less prevalent and more nuanced. And the difference seems likely to work to the advantage of Democrats.

If Democrats win control of the General Assembly and control 2020 redistricting they likely will maintain a strong number of districts that African American voters can control, but with lower percentages than now. If their analysis shows that black voters can elect candidates in a district which is only 40 percent African American, that is what they will draw rather than making it over 50 percent. There will be no need to worry about a lower percentage affecting preclearance. Those other black voters will go into a neighboring district to combine with white Democrats to improve the party’s chances there.

If Republicans retain control over the legislature and are in charge of redistricting in 2020 they too will be more limited in using racial districting. Because of Shelby County they will not be able to say that it is necessary to concentrate so many black Democrats into districts to satisfy the preclearance requirement. And there may also well be less force to the argument that the Gingles decision still obligates the state, 35 years later, to maintain majority black districts, especially in areas that were not even considered in that litigation. The skepticism the Supreme Court expressed in Shelby County about using old data to support race-based remedies may carry over to the thinking about the continued vitality of Gingles. Regardless of that, the loss of the Section 5 justification for drawing districts according to race will by itself result in fewer districts stretched and pulled to get over 50 percent African American voting age population — meaning more African American voters available to help elect Democrats in other districts.

So, one way or the other, it looks like there will be fewer majority African American districts in 2020; African American Democratic voters will have more say in other districts; and districts will be tied somewhat more closely to county geography.

]]>http://canons.sog.unc.edu/?feed=rss2&p=73740crowellm@sog.unc.eduThe Supreme Court’s Voting Rights Decisionhttp://canons.sog.unc.edu/?p=7181&utm_source=rss&utm_medium=rss&utm_campaign=the-supreme-courts-voting-rights-decision
http://canons.sog.unc.edu/?p=7181#commentsWed, 26 Jun 2013 11:19:13 +0000http://canons.sog.unc.edu/?p=7181An obligation that many North Carolina counties, school boards and cities have worked under since the mid-1960s ended yesterday. You have probably already read about the United States Supreme Court’s decision in Shelby County, Alabama v. Holder, the challenge to the constitutionality of Section 5 of the federal Voting Rights Act — the preclearance requirement which is now dead. There will be plenty of news coverage of the larger implications of the decision, so let’s just summarize briefly the effect on local governments in North Carolina.

Bob Joyce recently explained on this blog the differences between Sections 2 and 5 of the Voting Rights Act. Section 2 prohibits discrimination in elections anywhere in the country. In the 1980s and 1990s it was used to invalidate at-large elections for many boards of county commissioners, school boards and city councils in North Carolina, requiring that they be replaced with district elections in which some districts are drawn with African American majorities. Section 2 is not affected by yesterday’s decision. It remains in effect and will continue to be used by minorities to sue over election methods and practices they believe are discriminatory.

Section 5, on the other hand, has affected only 40 counties in North Carolina (and the state as a whole when the legislature makes changes that apply in those 40 counties, including legislative and congressional redistricting). It is the part of the Voting Rights Act that has required all changes in election practice and procedure to be precleared by the United States Justice Department or the federal district court for the District of Columbia before they could take effect. The review was intended to prevent any changes that make it more difficult for African Americans to vote or elect candidates of their choice. The burden has been on the local government submitting the change to show that its effect would not be discriminatory.

Who was subject to Section 5 was determined by a formula found in Section 4 of the act. In a nutshell, counties were subject to the Section 5 preclearance requirement if they had fewer than 50 percent of eligible voters registered or voting in the 1964 presidential election and previously had used a literacy test for voting. Forty counties in North Carolina met that test, most in the eastern part of the state. Yesterday the Supreme Court said Section 4 is so out of date that it no longer can be used to determine which jurisdictions are subject to preclearance. Too much has changed in the last 50 years, said the court.

The court did not declare Section 5 itself unconstitutional. Theoretically, Congress still could require preclearance of election changes in some parts of the country, but to do so it will have to come up with a new Section 4 formula based on current circumstances. The odds of Congress being able to agree on a new formula seem slim. Without a valid Section 4 formula, there is nothing in the law to say which jurisdictions are subject to Section 5, meaning the preclearance requirement presently is of no effect.

For the 40 counties in North Carolina previously subject to Section 5 — you know who you are — and the school boards, municipalities, boards of election and other governmental entities within those counties, there is no longer any need to seek preclearance of election changes.

The most obvious and significant effect of yesterday’s decision will occur when commissioners, school boards and city councils in those counties next redistrict, after the 2020 census. The redistricting plans will not have to be sent to Washington. They will take effect as soon as enacted. Likewise, annexations by cities in those counties no longer have to be precleared (annexations have been subject to preclearance because they change the make-up of the electorate). Also, now if a board of commissioners or city council wants to tinker with its method of election — increasing or decreasing the size of the board, changing terms of members, switching from districts to at large or vice versa, etc. — it may do so without having to count on the additional time required for preclearance. If the legislature decides to step in and change the elections for the board of commissioners, school board or city council through a local act, those changes will not require preclearance either.

Of less consequence, but of interest particularly to boards of elections, is the elimination of the need for preclearance of the numerous minor election changes that are noncontroversial but, even though they are routinely approved by the Justice Department, still have required preclearance. Those would be changes like splitting precincts, moving a polling place, changing voting equipment, altering the ballot design, setting a date for an ABC election, revising the office hours for the board of elections, opening a new one-stop voting site, and so on. The additional paperwork and the lag time for preclearance will no longer be needed.

Lastly, and once again, do not forget that the Supreme Court decision does not affect Section 2. If a local government, or the legislature, changes a local election plan to put African Americans or other minorities at a disadvantage, those citizens still may bring a lawsuit to challenge the change. What’s different is that the local government does not have to first prove the non-discriminatory nature of the change to the Justice Department.

]]>http://canons.sog.unc.edu/?feed=rss2&p=71810crowellm@sog.unc.eduServing Alcohol at City or County Events: What are the Rules?http://canons.sog.unc.edu/?p=6759&utm_source=rss&utm_medium=rss&utm_campaign=serving-alcohol-at-city-or-county-events-what-are-the-rules
http://canons.sog.unc.edu/?p=6759#commentsTue, 24 Jul 2012 18:09:57 +0000http://canons.sog.unc.edu/?p=6759Every now and then a city or county wants to serve beer and wine, or maybe even mixed drinks, at an official event. It might be a retirement party in the council chambers or perhaps a reception for a new citizens committee or a visit by a delegation from a sister city. Sometimes someone else, say a local business group, is using city or county space for its own meeting and wants to make beer and wine available to the participants. Is there any prohibition on alcohol use on city or county property?

The answer is no. There is no prohibition, and for the most part it is okay have alcohol at city or county events, and on city and county property. But exactly what you can do depends on the kind of alcohol. The answers are simpler for beer and wine than for hard liquor.

The general rule to remember is that in North Carolina it is okay to possess, serve and consume beer and wine anywhere and anytime unless there is a statute specifically prohibiting it. For spirituous liquor — the bourbon and gin and vodka that goes in mixed drinks — the rule is just the opposite. Hard liquor may be possessed, served and consumed only where the law specifically says it is allowed.

Notice that both of those statements are about possessing, serving and consuming alcohol, not about sales. No alcohol of any kind may be sold anywhere in the state unless the sale of that kind of alcohol is lawful in that city or county and the seller has the proper permit from the state Alcoholic Beverage Control (ABC) Commission.

Now, to the specifics about local government events and property.

Serving beer and wine

There is nothing in the ABC law, Chapter 18B of the General Statutes, that prohibits the possession, service or consumption of beer and wine on city or county property. Thus, under state law a city or county may serve — but not sell — beer and wine at its own events on its own property, or may allow others who are using the property to do so. The one hitch is that under G.S. 18B-300(a) a city or county by ordinance may prohibit possession of beer and wine on city or county property. If your local government has such an ordinance, then, depending on the wording, it could keep the city or county from having alcohol at its own events.

Selling beer and wine

Selling beer or wine is a different subject. First, the sale of beer and wine would have to have been approved in a local referendum for the city or county to even think of getting into that business. Second, the facility in which the sales are to be made would have to be a kind of establishment that qualifyies for a permit under G.S. 18B-1001(1) or (3). Cities and counties generally do not operate restaurants and hotels, but they may have cafes or snack bars at local parks and those kinds of places can get permits. A city or county also may have a convention center or community theater that is eligible for a permit. And some local governments own and operate ball parks which would qualify as retail businesses for beer and wine permits.

Even without regular ABC permits to sell beer and wine there is a circumstance when the city or county can use alcohol to make money on a one-time basis. Under G.S. 18B-1002(a)(5) a one-time permit may be issued to a local government to serve beer, wine and even mixed drinks at a ticketed fundraising event. Let’s say a county wanted to raise money for a new county historical museum and decided to have an auction. The county could sell tickets to that fundraiser and with the one-time permit from the ABC Commission could serve beer, wine, and mixed drinks to the people who attended. It’s not a direct sale of alcohol, but the local government profits from the tickets.

Mixed drinks

Except for that ticketed fundraiser, a city or county’s ability to serve mixed drinks is limited by the rule mentioned earlier, that spirituous liquor may be possessed and consumed only where specifically authorized by law. A city or county can get in the business of selling mixed drinks only if liquor by the drink has been approved for the community and the local government operates a facility that qualifies for a mixed drink permit. The kinds of places that can get mixed drink permits are more limited than for beer and wine, but convention centers and community theaters qualify. And if a city or county operates a 36-seat restaurant it is eligible for a mixed drink permit. As with other ABC permits, the mixed drink permit comes with a diagram of the approved premises, and sales are lawful only within that area. Thus, if a city operates a convention center and has beer, wine, and mixed drink permits, those permits will define the part of the building where sales are allowed and it still will be unlawful to sell elsewhere in the building.

Renting space and special occasion permits

What about allowing others to have alcohol on city or county property? Because the possession, service and consumption of beer and wine on local government property is lawful and does not require a permit, a city or county can allow anyone using its space to serve beer and wine, or can tell them they cannot do it.

There also is a means to allow others to serve — not sell — mixed drinks on city or county property. Say a citizen wants to use a large room in a city or county building for a wedding reception, or a local nonprofit wants to hold a raffle there, or a company wants to have a board meeting with a catered dinner. With the permission of the local government property owner, that person or organization could apply for and get a limited special occasion permit from the ABC Commission under G.S. 18B-1001(9). Such a permit authorizes them to bring spirituous liquor to that location for that event and serve it to the guests or participants.

There is another variation of the special occasion permit in G.S. 18B-1001(8). Using that subsection of the statute, the city or county itself could get a special occasion permit for a qualifying facility (say a restaurant or other eating establishment, or a convention center) owned by the local government and then it could allow the person renting space at that facility for a particular event to bring in spirituous liquor to serve to guests.

Conclusion

If a city or county wants to serve beer or wine at one of its functions, or wants to allow others using government space to do so, it usually is lawful and requires no ABC permit. Selling beer and wine, on the other hand, always depends on a permit, as does both serving and selling mixed drinks. And the number and kind of local government facilities that might be eligible for such permits is limited, especially for mixed drinks.